Baltimore prosecutors lighten up on marijuana possession

Ian Duncan, The Baltimore Sun

Caught with a couple of joints he didn't get the chance to light up, Eric Staton was ordered to appear before a Baltimorejudge. Two weeks later, in a basement courtroom on North Avenue, prosecutors said they would drop the possession charge if Staton agreed to pick up trash for five hours.

Staton, 42, hesitated before taking the deal.

"Ten grams is nothing," he told a spectator during the hearing. "They should legalize that marijuana."

In recent years, Maryland has taken small steps to scale back laws against possession of marijuana. This year state lawmakers turned down a move to decriminalize the drug, but hundreds of smokers in Baltimore are taking advantage of deals offered by prosecutors to avoid jail time — and convictions on their records.

Even those who have been caught with the drug several times canfind themselves directed back to community service programs.

Baltimore State's Attorney Gregg L. Bernstein, is keen on such marijuana "diversion" programs, and more people are choosing that option. The programs, which have become popular in Maryland and across the country, provide a middle ground between the legalization favored by some and the criminalization that law enforcement officials see as a powerful tool to uncover evidence of more serious crimes.

While prosecutions have relaxed, and state lawmakers have laid out lesser penalties for possession of smaller amounts, possession arrests in the city continue to number in the thousands annually, and they fall disproportionately on black men.

And though many avoid conviction and jail time for possession, others face the full force of the law, especially if they have previous convictions or have faced multiple marijuana charges.

A move toward full decriminalization fell short in the General Assembly this month, though legislators passed a limited medical marijuana law.Advocates say the state should make a definitive decision on the issue.

Sen. Bobby Zirkin says the state is wasting police, prosecutorial and judicial resources chasing marijuana. Speaking at a recent hearing in Annapolis, the Baltimore County Democrat told colleagues that a change last year that softened penalties for possession of less than 10 grams was just "nibbling around the edges."

"We've pushed it about as far as we can," Zirkin said.

Bernstein said changes to the law need to be considered carefully. He said offering a possession suspect a deal has the twin benefits of freeing up space on the court docket and giving the defendant a way to avoid a criminal record.

Almost a quarter of the people charged with possession in Baltimore last year accepted diversion. The rate has more than doubled since Bernstein took over two years ago.

"It's difficult enough to find employment, education opportunities, things of that nature," Bernstein said. "But if you have a criminal record, it becomes that much more difficult."

Prosecutors in 15 Maryland counties have similar programs, but most are open only to first-time offenders. Bernstein has been offering community service even to defendants facing their second or third charge, though prosecutors can still pursue serious punishment against some offenders.

Staton said picking up trash is better than a spell behind bars — but added that the inconvenience of being arrested and having to come to court should be punishment enough.

Still, when a judge asked if he wanted to take the offer for his arrest in the 300 block of W. Franklin St., Staton accepted it with a "yes, I guess."

"Nobody wants to be in the state [prison] system," Staton said. "But you've got people here crashing cars and killing people. No one killed anyone for a bag of weed."

Staton, who was arrested in the 5100 block of Park Heights Ave. for possession a second time shortly before his court appearance, said that a criminal record can make it difficult to find work. After his first few arrests, he said, he gave up on getting a steady job.

Staton said he makes money under the table cleaning cars and doing other odd jobs. He lives with his mother in Northeast Baltimore.

Police in Maryland continue to make marijuana arrests, but in many cases, the amounts of contraband are small. The majority of possession charges filed in Baltimore since the law changed in October have been for less than 10 grams.

About 1,800 people had been charged with the lesser offense, according to the state's attorney's office. Slightly more than 1,200 have been charged with possessing larger amounts.

Staton was arrested after officers smelled dope on him one Wednesday evening late in March, according to the citation he was clutching in court. Police said he made no effort to hide what he had.

"He stated without persuasion 'I got weed on me,' " an officer wrote in the charging document.

Such arrests are common. On the day Staton was sentenced to picking up trash, the courtroom was packed with suspects charged with possession — something many said they see as barely criminal.

David Nowak, a Towson defense attorney who has studied marijuana enforcement, said the expectations of smokers often clash with those of police. And because much is left to the discretion of police and prosectors, decisions on arrests, charges and prosecutions vary widely.

"I typically see vacationers from Central Maryland that will go to either the beach or to the mountains and they'll get in trouble and they're surprised," he said. "The laws are the same, but the ways they're treated are different."

For the first time, a majority of Americans now support legalizing marijuana, according to a poll published this month by the Pew Research Center for the People and the Press.

State lawmakers pushed bills this year that would have legalized possession or made possession of small amounts a civil offense punishable only by a fine. Both measures failed.

Lawmakers did pass a law allowing doctors and nurses to distribute the drug through academic centers that are studying the impact of medical marijuana, but for now Maryland will continue to treat most possession as a crime. And for some, serious prison time remains a possibility.

Prosecutors this month offered Dwayne Miles, 32, a 60-day prison sentence if he pleaded guilty to possession. He declined, preferring to take his chances at trial, and is scheduled to be back in court in June.

Assistant State's Attorney Patricia Deros, who handles a special docket for minor cases, said the allegations in Miles' case — police said he had cannabis concealed inside a can with a false bottom — and his previous record suggested he was more than just a casual smoker.

Miles was charged twice within six days in March, according to court records.

"I love to smoke marijuana and I'm going to continue to do that," he said. "I don't think there's nothing wrong with that."

In 2012, 1,409 people in Baltimore charged with possessing marijuana performed community service in exchange for having their cases dropped, more than double the 2010 number, according to the state's attorney's office.

Staton's case will be dropped if he completes community service. But he said he is worried about being arrested again before getting his record expunged.

He said the government is fixated on pursuing people like him.

"From East Baltimore to West Baltimore, they stereotype," he said. "They look at black people."

More than 93 percent of people arrested by Baltimore police in connection with possession in the last two years were black, data show. Overall, about 83 percent of the people arrested were black.

Anthony Guglielmi, a spokesperson for the Baltimore Police Department, said officers do not discriminate against any particular community.

Bernstein and Guglielmi both said Baltimore police and prosecutors are focused on violent crime and that marijuana is not a priority. But the number of arrests is greater than it was five years ago, according to the state's attorney's office.

Baltimore logged 6,005 possession arrests last year, down from 7,234 in 2011 but more than the 5,764 in 2007. Statewide, there were 24,488 possession arrests in 2011, the most recent year available, up from 22,048 in 2007.

The General Assembly changed the marijuana laws last year in an attempt to soften the blow of those arrests.

In addition to lesser sentences for having less than 10 grams, a law that came into force Jan. 1 this year instructs police to charge possession by citation, which can be done on the street. The measure was designed to keep people out of jail before court dates.

Bernstein said further changes in the marijuana laws need to be considered carefully, as does the question of whether any changes should be applied to other drugs.

"I don't think it's quite as simple as saying, 'Well, let's decriminalize possession,' " he said, adding that Maryland should keep a close eye on Colorado and Washington, which legalized marijuana last year.

Under current law, the smell of marijuana gives police probable cause to conduct a search. Guglielmi said that can help the investigation of the kinds of violent or serious crimes on which the department focuses.

At hearings on the decriminalization bills in Annapolis, police officials said they worried about losing that tool. Wicomico County Sheriff Mike Lewis cited cases in which the smell of marijuana had led to major busts involving more serious drugs. He said in an interview that he supports diversion for first-time offenders.

Legalizing or decriminalizing marijuana could harm investigations, Bernstein said. For now, he said, he thinks he has the balance right.

"The fact of the matter is as the prosecutor, I'm given the discretion to make these kinds of decisions every day about using the laws to determine what are the cases we want to devote our attention to," he said.